Good Example Of When A Couple Splits Up, Who Owns Their Frozen Embryos? Research Paper
Like many contemporary ethical dilemmas, the question of who owns a frozen embryo arises as an unintended consequence of a technological advance. As in vitro fertilization (IVF), developed in 1987, came within the technical and financial reach of more and more couples, the number of frozen embryos stored in fertility clinics skyrocketed. According to the RAND Corporation, as of April 11, 2002, there was a total of 396,526 frozen embryos being stored in the United States. No one is entirely sure how many there are today, but some sources estimate that they number over 500,000 (Mundy).
Because the process of harvesting human eggs from a woman is invasive and complex, taking several eggs at one time has become standard medical practice. The eggs are then fertilized with sperm, usually from the woman’s male partner or spouse, frozen, and stored until the couple is ready for implantation. Even couples who
successfully have children through IVF often have additional embryos in storage, against the possibility that they may wish to have another child in the future.
After placing their embryos in storage, some couples decide to separate or divorce, which presents the question of which one will take legal possession of the embryos. The question brings with it thorny issues of law, practicality and morality. Setting aside the question of whether it is right or wrong to create embryos through IVF in the first place, this paper will examine the legal, practical and ethical issues associated with what I reluctantly term “ownership” of an entity that has the potential to develop into a human being. First, I will examine the legal and practical arguments, then consider how these realities bear on the ethical dilemmas that we face today. In doing so, I will also look at several scholarly theories of dispute resolution designed to clarify, or avoid altogether, the question of who controls the fate of frozen embryos. While these theories are not expressly ethical theories, they do examine the embryo issue from a broader, more values-based perspective.
2. Legal Issues
There have been five lawsuits of significance that bear on the question of who has control of a frozen embryo. The earliest, Davis v. Davis, took place in Tennessee in 1992. Following divorce, the wife wished to donate the couple’s frozen embryos to a childless couple. The husband did not desire to have another child, even if he had no
obligation to raise it, and wished to have the embryos destroyed. A trial court held that frozen embryos were, in effect, children, and so awarded the embryos to the wife, since her intention was to ensure their survival.
The case went to the Tennessee Supreme Court, which took a different view. It said that the frozen embryos were not “children,” but hesitated in finding that they were “property” of the sort that can be allocated after the dissolution of a marriage. Finally, the court found that what it called “pre-embryos” were not property and so could not be assigned to an individual in the same way that possessions are divided in a divorce. Instead, said the court, pre-embryos deserve “special respect” because they have the possibility of becoming children, even though they cannot be considered persons while in the pre-embryonic state. It further stated that couples should make a written agreement on the ownership and/or use of the embryos prior to having them frozen. Then, in the event of divorce, the legal settlement would follow the dictates of the couple’s original agreement.
“Special respect” and a legal contract notwithstanding, the Davis case still presented the practical issue of who would control the fate of the embryos, since the couple did not have an agreement prior to their divorce. The court was forced to weigh the husband’s right to avoid parenthood against the wife’s right to donate the embryos. In the end, the court sided with the husband, saying that the court did not have the right
It should be noted that if the wife had wanted to have the embryos implanted in herself, the court’s decision may have been different. Also note that embryos were not considered “persons” in the legal sense and thus did not have rights of their own. In the end, the court found that the constitutional right to privacy established by the landmark US Supreme Court case, Griswold v. Connecticut in 1965, not to mention the Court’s subsequent decision in Roe v. Wade (1973), which was based on Griswold, protects citizens such as the husband from being forced by the state to have a child.
Following the Davis case, two more cases appeared, Kass v. Kass in 1990 and J.B. v. M.B. in 1995. Both of these concerned a pre-IVF agreement that the couples had signed as part of the informed consent form required by all IVF clinics. Couples sign this form to create a legal record stating that they understand the treatment they are about to receive, as well as its consequences. The form includes a provision that grants the IVF facility ownership of any unused embryos should the couple divorce. While this type of agreement satisfied the court in Kass v. Kass, it did not do so for the court in the J.B. v. M.B. case.
In that case, the Supreme Court of New Jersey said that, even though the couple had signed an informed consent form, it did not constitute an “unambiguous disposition” of the embryos. The court chose not to follow the advance directive, but ultimately, did
agree that the right not to become a biological parent outweighed the right of the other party to have the child.
There have been two other court cases of note on this topic, Cahill v. Cahill and Litowitz v. Litowitz. In Cahill, the court ruled that the informed consent form, which gave control of the embryos to the fertility clinic, was valid. The Litowitz case had an added twist because the eggs used to make the embryos were from an egg donor, not Mrs. Libowitz, and a contract existed between the egg donor and the couple. After moving through a lower court and an appeals process the Washington State Supreme Court settled the matter by allowing the father to use his best efforts to donate the embryos to an infertile couple. The court noted that this decision was in the “best interests” of the frozen embryos.
3. Theories of Dispute Resolution
The Contract Theory was postulated by law professor John A. Robertson of the University of Texas at Austin. It has received the support of the medical establishment along with many courts (Robertson 1024). This is the idea that all couples undergoing IVF should be required to sign an advance directive as to the disposition of their frozen embryos in the event of their separation. This essentially treats embryos like property.
The Contemporaneous Consent Approach was devised by professor Carl H. Coleman of the Seton Hall University School of Law (Coleman 75-76). He holds that the idea of an advance directive for the disposal of frozen embryos is “dehumanizing” and “embodies a conception of family relationships that society should be reluctant to embrace (Robertson 989).” He proposes a default position to apply in all circumstances when couples disagree about the fate of their frozen embryos — they should remain frozen until the couple reaches a mutually acceptable decision. This allows for the provision of changing one’s mind between the time an agreement would be signed and the disposition carried out, as referenced by the court in J.B. v. M.B.
The Right to Procreate and the Right Not to Procreate both hinge on case law, certain important US Supreme Court cases such as Roe v. Wade and Griswold v. Connecticut, and provisions found in the Fourteenth Amendment to the Constitution. In essence, people have the right to procreate and the right not to procreate and the state has no basis on which to aid or prevent either choice.
There are three key cases that create precedent for the right to procreate. They include Meyer v. Nebraska (1923), which recognized an individual’s right to marry and have children, Skinner v. Oklahoma (1942), which established an individual’s right to have children and, importantly, separated that right from the right to marry, and Harris v. McRae (1980), which confirmed the right to have children but said that the state has no obligation to assist an individual in exercising that right.
Three important legal cases also provide the foundation for the right not to procreate. The first is Griswold v. Connecticut (1965), which established the rights of married couples to access birth control. This decision is rooted in the idea that the US Constitution establishes a right to privacy, although the document does not explicitly say so. The other two decisions that form the foundation for the right not procreate are Eisenstadt v. Baird (1972), which expanded the right to access contraception to include consenting adults who are not married, and Carey v. Population Services International (1977), which stated that minors also have the right to obtain contraception.
Of course, Roe v. Wade (1973) might also be considered to support the right not to procreate, even though that decision established a woman’s right to terminate a pregnancy rather than to prevent a pregnancy through contraception.
Although there is case law supporting both the right to, and the right not to, procreate, most courts have decided in favor of the latter when these two rights are in
conflict, which is most often the case in disputes over the ownership of frozen embryos. This is because precedent strongly supports limiting the role of the state from involvement — some might say interference — in reproductive choice, that choice being viewed as a private matter protected by the constitutional right to privacy (Carey 678, 694).
4. Israel’s Nachmani Case
In 1996 an interesting case came to Israel’s Supreme Court, Nachmani v. Nachmani. The husband and wife had created several embryos, which were frozen and stored at an IVF clinic. When the couple divorced, the wife sought to have the embryos implanted in a surrogate so that she could have children. The wife was unable to carry a child herself because she had undergone a medically necessary hysterectomy while married. She had, however, retained her ovaries.
The couple sought IVF treatment with the intention of extracting eggs from the wife, fertilizing them with sperm from the husband, and freezing the resulting embryos until such time as they wished to have children. At that point, the plan was to retain a female who could serve as a surrogate and carry the embryo to term. After the divorce, the wife wished to follow through on the original plan.
The husband, however, did not want to become a parent with his former wife and objected to having his DNA used by the surrogate so the wife could exercise her right to
procreate. He had since remarried and argued that his right not to procreate should be upheld. A minority of the judges agreed with him.
Interestingly, the majority found in favor of the wife, acting contrary to established precedent, which is the same in Israel as in the United States. Although case law in Israel firmly supported the husband’s right not to procreate, the court stated that ‘justice’ required it to uphold the claim of the wife. The judges cited an ancient system — Nichomachean ethics — promulgated by Aristotle, which holds that a judge has an obligation to issue decisions that are ‘just,’
even in those cases when case law runs counter to the judge’s perception of justice. Because the wife had undergone considerable pain and suffering in the IVF process, and because she could reproduce in no other way due to her physical limitations, the majority of justices believed that the just decision was to find in her favor.
While no US court has relied on Nichomachean ethics to support a decision in cases of frozen embryo ownership, there is a possibility that this could happen at some point.
It would seem that there is no single, satisfactory answer to the challenging question of what happens to unused frozen embryos. Indeed, even the term “unused” is
problematic, as it casts the embryo as a tool to be used in the pursuit of some other end, rather than as an end — should it become a human child — in and of itself. As in all ethical dilemmas, one must make a choice based on what seems not merely legal, but right and true, moral and good, all qualities that, in the end, are determined by the heart, as well as the head.
While I can sympathize with people such as the wife in the Nachmani case, I am also reluctant to have third parties, particularly those representing the state, determine the outcome of intimate and sensitive circumstances that should be left to the
individuals in question. However, when decisions are indeed left to the possibly
combative divorced couples, society ends up with hundreds of thousands of frozen embryos stored in private IVF clinics around the country. The ultimate fate of all these embryos is unknown at best, and possibly criminal at worst. This situation is certainly not ideal and in many respects is not a true solution to the problem. Coleman’s default position would support this limbo arrangement, which is why I tend to reject his Contemporaneous Consent approach. At bottom, it’s a cop out serving only to aggravate the original dilemma.
Perhaps the bigger question is not so much about what is decided, as is who makes the decision. In many ethical conundrums, the individual in question is the one
who must make the choice, based on what best fits with his beliefs, and perhaps what he can live with going forward. But in the case of the courts, we have two individuals
who are at odds about how to resolve an ethical dilemma, so third parties in the form of judges and juries must be the ones to decide. In a sense, the men and women who create these frozen embryos are shirking their responsibility for addressing the outcome of their decisions.
And it seems that the clinics and the medical personnel who operate them are also culpable. After all, they are presumably profiting from an infertile couple’s pursuit of a child, as are the corporations who make the IVF equipment, the pharmaceutical companies who make the drugs and others who supply and support the IVF business in the United States. And then there are the monthly fees paid by thousands of couples to
keep embryos frozen, sometimes forever if one follows the Contemporaneous Consent Approach. How can this be considered an ethical business?
I am reluctant to take a firm stand one way or another on this issue. While I know that I reject some theories of dispute resolution, there are others that I’m ambivalent about. I feel that I must reserve judgment until I have done more thinking on the problem and it comes time to work on part three of the treatise.
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